For many of us who hail from Commonwealth countries around the world but live in Hong Kong, home can feel very far away. Therefore it is with extra special excitement that we celebrate this special day; the birthday of the longest reigning monarch of the United Kingdom, Australia, New Zealand and Canada and Head of the Commonwealth. On this day we will celebrate with proper British birthday cake and lots of British cheer (and a nice cup of tea!). We thank Her Majesty Queen Elizabeth II for all her hard work in representing our countries with unfailing dedication and elegance.

From the team at Tanner De Witt:

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The Court of Appeal judgement in AVT v VNT [2015] HKEC 1298 is a good example of the departure from equal sharing of matrimonial assets in the case of a short and childless marriage.  This case concerns a medium-sized estate and a comfortable standard of living enjoyed throughout the marriage.  Common topics discussed are whether to provide the financially weaker spouse a permanent home or rental provision, what impact would potential post-divorce changes have on the divorce and whether family businesses are non-matrimonial properties.  Whilst the rulings in this case should not be interpreted as imposing a straitjacket approach on future comparable cases, it is nevertheless interesting to see a high court’s views and concerns on these topics.

The facts of the case are straightforward:

• Marriage of about 3.5 years, no children, young Indian couple (husband 39 and wife 37) living in Hong Kong;
• Husband’s major asset is his 30% minority shareholding in a successful family business in Hong Kong.  His shareholding is valued at HK$30.03 million, which includes a 20% discount for the fact of minority shareholding which suggested little control of the economic usage of the business.  The husband’s father owns 70% of the company;
• In addition to the company, the husband had about HK$340,000 in cash deposits and a MPF portfolio of about HK$340,000.  He had also been loaned about HK$470,000 from his company;
• The wife did not work throughout the marriage.  She had not had a formal job since university graduation.  She had a share portfolio of about HK$1.5 million.  She cannot speak Cantonese.  She plans to become a personal therapist and life coach in Hong Kong within 3 years after the divorce;
• Initially after marriage, the couple resided at the rented apartment of the husband’s parents.  The apartment rent was paid by the husband’s father.  Subsequently, the couple moved to live in a serviced apartment whose rental was paid by the husband’s company. There were discussions to purchase a property and efforts to find a matrimonial home but at the time of separation no property had been purchased;
• Comfortable standard of living.

The final award to the wife was a lump sum of HK$6 million, about 20% of total joint assets.   This comprised of:

(i) HK$3.25 million to satisfy the accommodation needs of the wife;
(i) HK$2.25 million for her maintenance of 3 years after the marriage (her monthly expense excluding rent was about HK$67,000 per month); and
(iii) HK$500,000 for the wife’s contribution to the welfare of the marriage.

It should be noted that in considering the wife’s needs the Judge took into account that the wife had not made full disclosure of her financial resources in India which suggests she might not have needs for permanent accommodation in Hong Kong.

The wife’s accommodation needs

The wife requested a purchased property in the award.  She produced evidence of discussions with real estate agents to show that the couple had, prior to the divorce, intended to purchase a matrimonial home save that the plan had yet to be substantiated.  At first instance, the lower court granted HK$7.2 million for the wife to purchase a property.

The Court of Appeal dismissed the award of a permanent property to the wife.  Lam VP ruled that in the circumstances of a short and childless marriage between a young couple, granting a lifelong provision to the wife might not be fair on the husband because a young divorcee is capable of substantial financial changes over the long-term, such as remarriage or a change in lifestyle pattern.  Fairness dictates that such inherent uncertainties should be taken into account in deciding the proper level for a lump sum award.

A significant fact of this case is that the couple had not purchased a matrimonial home or lived in a property owned by one of them or their alter ego. The wife lodged evidence of efforts and communications with real estate agents to show the intention of the parties to purchase a property.  Lam VP commented that such intentions during marriage have no significance in the circumstances.

Notwithstanding the above, it was held that since the wife had not been working throughout the marriage her accommodation needs would have to be more generously interpreted and it should not be confined to three years’ rental of a suitable property and thus an award on broad brush was offered at HK$3.25 million for the wife’s rental needs.

The husband’s financial resources to pay the ancillary relief award

The husband argued that he lacked liquidity and income to fulfil the award of HK$6 million to the wife.  The Court considered the reality of the situation, including what might reasonably be made available to the husband if a request for assistance were to be made.

Cheung JA considered that the husband’s lifestyle has always been funded by the family business by way of borrowing which points to the reality that the husband has the resources to pay the wife.  Specifically, it was clarified that such ruling is not in any way allowing judicious encouragement by the husband’s family to be included in a matrimonial award.   It seems that the husband’s past conduct of making various borrowings from the company to fund his lifestyle is the major indicator of the husband’s available financial resource.

Is the family business a non-matrimonial asset?

Whether the husband’s family business should be treated as a non-matrimonial asset was not argued as an issue in this case.  The judges briefly expressed their views on non-matrimonial properties as follows:

• If there are matrimonial acquest acquired during the course of marriage, no matter how short the marriage, the principle of sharing will be applicable;
• In Hong Kong, the sharing principle is also applicable to non-matrimonial property though the short duration of a marriage will give rise to a good reason for substantial departure from equal division;
• It follows that the longer the marriage, the greater the intermingling of the affairs of the parties to the marriage and the greater the claim for future needs of a longer period of time (or even life-long needs) to be taken into account in the fair distribution of the resources of the parties.

Comments

This case should not be interpreted as a definitive precedent that family businesses are warranted non-matrimonial properties or that spousal maintenance in short and childless marriages shall be capped at 3 years of financial provision only.

The ancillary relief is a discretionary award.  Each case is different on its facts and thus the weight given to the same factor (such as unemployment of one spouse during the marriage) also varies in cases.   In AVT v VNT, it could be possible that when assessing the wife’s needs from the evidence, the judges decided that it would be fair to give slightly more weight to the wife’s comfortable standard of living enjoyed before the marriage and her non-disclosure.  The same consideration might not be given in other cases.

The simple advice is:  if there are concerns of asset protection from a divorce, do not take risks.   Contact a lawyer to discuss your concerns, before and during a marriage.

Contact us to learn more.

Natalie Chok
Solicitor | Email

Joanne Brown
Solicitor | Email

Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.

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The Labour Department is conducting a consultation on a draft Code of Practice for Employment Agencies. Through promulgating the Code for the industry’s compliance, the Labour Department aims to promote professionalism and quality services in the employment agencies industry. Members of the public can obtain the draft Code at the Labour Department and are welcome to give their views on the draft Code within the consultation period. Please submit your written views by email, fax or post on or before 17 June 2016. More information can be found here.

About Tanner De Witt

Tanner De Witt is an established and recommended independent law firm in Hong Kong. Our firm and lawyers, many of whom have international law firm backgrounds, receive top ratings from industry publications such as Chambers and Partners and Legal 500. Our employment practice is led by Russell Bennett and Kim Boreham and achieves top ratings by industry directories.

Please contact Russell Bennett of Tanner De Witt for more information: email or +852 2573 5000.

Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.

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Tanner De Witt continues to support the Christina Noble Children’s Foundation. Partners Kim Boreham and Pamela Mak hosted a table at the 6th Annual CNCF Rugby Sevens Ladies Long Lunch, a unique event that is designed to be genuinely fun and all for a powerful cause.  The goal of this yearly event is to raise money for children living in extreme poverty in Vietnam and Mongolia.  This year the lunch took place on Friday 8 April 2016 at the Hong Kong Jockey Club Members Stand in Happy Valley. Activities during the event and the lunch itself raised close to HK$1.3 million. The foundation announced that this amount is enough to support 440 children’s healthcare, education and nutrition for over one year. Fundraising and charity is a vital part of our firm’s spirit and you can find out more about other activities here.

About CNCF
The Christina Noble Foundation was founded in 1991 in Ho Chi Min city Vietnam by Christina Noble. The organisation’s mission is to provide relief to children in need. To read more about the Christina Noble Foundation click here.

For sponsorship and event enquiries, please contact us.

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Tanner De Witt Partner Kim Boreham joined a panel discussion on the global expatriate workforce at the American Bar Association Section of Labor & Employment Law’s International Labor and Employment Law Committee Midyear Meeting at the Langham Hotel in Hong Kong on May 4 2016. Entitled “Multinational Employers and their Mobile Employees”, the panel discussed issues facing this important group of people within the region’s workforce with Kim focussing on Hong Kong.

Multinational Employers and their Mobile Employees

Hong Kong, once described as a “city between worlds,” has one of the largest expatriate workforces on earth, with hundreds of thousands of employees from other jurisdictions working in permanent, temporary and intermittent jobs. These expats, their representatives and employers often face tough issues under statutory and common law, including choice of law, choice of forum, conflicting contracts, discovery across borders, and often conflicting data privacy rules. This panel will discuss current approaches to these and other cross-border challenges.

About Tanner De Witt’s Employment Practice

Tanner De Witt has acted in several of the leading reported cases in Hong Kong over the last 12 years and are regular speakers to employers, business groups and human resource professionals. We act for many major employers as well as senior executives and high profile employees in a wide range of industry sectors including banking and finance, insurance, publishing, manufacturing and professional services.

Through our experience and knowledge we aim to provide quality, cost-effective and commercial legal advice. Further, through our experience we are also able to offer tactical and common sense guidance on best practice to ensure the best overall result for the client, including issues such as performance management, rewards and restriction structures, exit strategies and mediation.

For more information please contact Kim Boreham on email or phone +852 2573 5000.

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Recently a learned Queen’s Counsel sent us this photo of a Tanner De Witt golf ball (with our pre-2010 branding) which had been found in a bush in the US Virgin Islands at the Mahogany Run Golf Course…we don’t know how long it has been there but it is proof that our brand reaches far and wide.

As an established independent Hong Kong law firm, ensuring our brand is recognisable across the globe is not a simple task. We have put together below a few images of Tanner De Witt branding in action.

For sponsorship and event enquiries, please contact us.

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Legal Representative

Each company established in China, whether domestic or foreign-owned, must have a legal representative who is the main principal of the company and has the authority to represent the company and enter into binding contracts or contractual obligations for and on behalf of the company in accordance with the law and articles of association of the company.

Candidates for the Legal Representative

A legal representative must be a natural person  selected by the company from one of the following:

(1)    the chairman of the company’s board;
(2)    executive director; or
(3)    the general manager of the company.

There are no residence or citizenship requirements for the legal representative but the personal details of the legal representative must be registered with the relevant company registration authorities in China and his name will also be printed on the company’s business license.

Powers and Liabilities of the Legal Representative

The PRC company law does not clearly define the powers of a legal representative. However, a legal representative generally has the powers to operate the company and manage its business in accordance with the laws and its articles of association. Such powers include executing power of attorney for and on the company’s behalf and executing any legal transaction or documents for and on behalf of the company. The company can restrict the powers of its legal representative in its articles of association.

A legal representative has a higher standard of care and duty under PRC law and can be liable for wrongful acts both of the company and himself. The liabilities of a legal representative can be divided into civil liability, administrative liability and criminal liability.

Civil Liability: Since the legal representative usually represents the company, his duty-related behaviors in many cases shall be regarded as the activities of the company. The respective civil liabilities therefrom shall normally be borne by the company. However, the company can claim damages from the legal representative if the legal representative acts exceeding his authority or is negligent.

Administrative Liability: If a company breaches laws and regulations, its legal representative may be subject to fines and administrative punishment from the PRC government in addition to the punishment received by the company.

Criminal Liability: The PRC criminal law imposes criminal liability on both the company and the persons who are in charge of or responsible for the crime of company. As the main principal of the company, the legal representative will face the risk of being pursued for criminal liability for the crime conducted by the company if he participates in or is responsible for the crime of the company.

Liabilities of the Company for unauthorized actions of the Legal Representative

The company is usually liable for any contracts and contractual obligations created by its legal representative even if he exceeds the scope of his authority unless it can be proved that the other party should reasonably know that such contracts or obligations exceed the authority of the legal representative. It is for the company to demonstrate that it has made reasonable efforts to notify the other party of the restriction over the legal representative’s authority, for example, by posting the articles of association of company to the other parties or on the company’s website. However, in practice, it is very rare for a company to disclose its articles of association to any third party.

Supervisor

Any company established in China after 1 January 2006 must have a supervisor or a board of supervisors depending on the size of the company. Shareholders and employee representatives of a company can be selected as supervisors. No directors or senior managers of a company can serve as supervisors of that company. If the company is large and has a board of supervisors, the number of employee representative supervisors shall be no less than one-third of the total number of supervisors.

The main role of a supervisor is to safeguard and supervise the smooth and lawful operation of the company. The law gives him various rights including but not limited to the rights to:

1.  inspect the company’s financial documents;
2.  supervise directors and senior managers;
3.  recommend the dismissal of directors or senior managers who breach laws or internal rules of the company;
4.  propose interim shareholders’ meetings;
5.  make proposals in shareholders’ meetings; and
6.  initiate legal action against directors and senior managers for and on behalf of the company.

Company Chops

A company in China may have a number of chops. Different chops have different purposes and are used on different types of documents.

The most commonly used company chops include:

Company Seal

In China, a company must have a company seal which will usually be in the custody of the legal representative. The company seal must contain the registered name of the company and be approved by the Public Security Bureau. The company seal has the highest legal effect among all company chops and can replace other chops. Important corporate documents and contracts will require the company seal be affixed on that together with the legal representative’s signature.

Financial Chop

A company may have a financial chop which is only used for issuing company cheques and other finance-related documents. Banks may require a company to provide its financial chop when opening a bank account or filing documents to banks.

Contract Chop

Many companies will also have a separate contract chop for signing contracts. While a contract chop is not a statutory requirement, it has equivalent legal effect to company seal when used on contracts.

In China, company chops are important assets of a company and should be kept in hands of trusted persons. It is not recommended to have all company chops in the possession of one person who is also the signatory for all of them unless he is the owner of the company.

River Stone
Solicitor | Email

Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.

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Many of the administrative and legal decisions that affect closely the lives of residents of Hong Kong and businesses that operate in Hong Kong are not made in the courts but are given in specialist tribunals or other bodies created by statute to deal with regulated professions and occupations.

The range of occupations that are regulated in Hong Kong is growing all the time as social expectation changes and Hong Kong continues to integrate its economy into best international practice. The procedures of these specialist bodies and tribunals are all different and are normally to be found as part of the constitution of that body. All share the need to provide a fair and rational hearing, that is to follow the rules of Natural Justice which is also one of the fundamental expectations of the hearing in the various courts in Hong Kong. However the intricacies of each individual body require careful attention and specialist assistance from solicitors who can appear as advocates and who have the experience and the requirements of that body is often valuable.

Members of Tanner De Witt can advise on, have appeared in and/or have understanding of the following bodies:

• Administrative Appeals Board (AAB): an independent statutory body that hears and determines appeals against certain decisions of statutory bodies made in respect of an appellant such as appeals against decisions of the Privacy Commissioner matters on security personnel permits and business registration fees.
• Commercial Crime Bureau (CCB): investigates serious and complex commercial fraud; computer crime; and the counterfeiting or forgery of currency, coinage, credit cards, other commercial instruments and travel and identity documents.
• Competition Tribunal (CT): hears and decides cases connected with competition law in Hong Kong.
• Confederation of Insurance Brokers (CIB) Disciplinary Tribunal: an approved body of insurance brokers to implement self-regulation of insurance brokers in Hong Kong.
• Coroner’s Court: inquires into the causes and circumstances of certain deaths.
• District Courts: has both criminal and civil jurisdiction and deals with offences transferred to it from the Magistrates’ Court.
• Family Court: deals with cases relating to divorces and welfare maintenance for children.
• High Court: made up of the Court of Appeal and the Court of First Instance, it has both appellate and original jurisdiction.
• Hong Kong Monetary Authority (HKMA): the government authority in Hong Kong responsible for maintaining monetary and banking stability.
• Independent Commission Against Corruption (ICAC): takes a three-pronged approach of law enforcement, prevention and community education to fight corruption.
• Insider Dealing Tribunal (IDT): was replaced by the Market Misconduct Tribunal in 2003 (see below).
• Juvenile Court: hears charges against children or young persons under the age of 16, except where the charge is one of homicide.
• Labour Tribunal: offers a quick, informal and inexpensive way of settling monetary disputes between employees and employers.
• Lands Tribunal: hears and adjudicates cases relating to land law.
• Liquor Licensing Board (LLB): considers applications for liquor licences and club liquor licences.
• Magistrates’ Courts: hears a wide range of offences, both summary and indictable.
• Market Misconduct Tribunal: hears insider dealing, false trading, price rigging, stock market manipulation, disclosure of information about prohibited transactions and disclosure of false or misleading information inducing transactions in securities and futures contracts.
• Municipal Services Appeal Board: hears and determines any appeal to the Board from the Licensing Appeals Board such as refusal of the issue of a liquor licence, suspension of a restaurant licence, termination of the tenancy of a market stall etc.
• Obscene Articles Tribunal: hears from such parties as authors, printers, manufacturers, publishers, importers, distributors, copyright owners or any person who commissions the design, production or publication of the articles concerned.
• Registration of Persons Offices: handles registration of identity cards and other immigration related matters.
• Securities and Futures Appeal Tribunal (SFAT): acts as a safeguard to ensure that regulatory decisions made by relevant regulatory authorities including the Securities and Futures Commission (SFC) and the Hong Kong Monetary Authority are reasonable and fair.
• Securities and Futures Commission (SFC): an independent statutory body set up in 1989 to regulate Hong Kong’s securities and futures markets.

In order to select the relevant lawyer, please see our Practice Areas page or Contact Us directly for more information.

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Tanner De Witt was proud to sponsor the Sai Kung Beach Boys Football Association‘s first fund raising event held on Friday 20 May at Kings Park Sports Ground which was a tremendous success with more than HKD30,000 being raised for two year old Connor Brown, son of Chris and Richelle Brown, who suffers from a rare condition called ED – Ectodermal Dysplasia.

Tanner De Witt’s criminal lawyer Phil Swainston played on the night to help raise funds for this worthy cause (below centre).

For event and sponsorship enquiries, please contact us.

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Tanner De Witt was proud to be the main sponsor at the Spring Fever Saturday Dance Party this weekend raising funds for Wimler, a Hong Kong based charity which provides funding for children in the Philippines to go to school in circumstances where they would not otherwise be able to do so.

About Wimler Foundation

WIMLER Foundation Hong Kong Ltd. was officially registered in 2011 as a non-profit and charitable organization whose primary objective is to support the capacity building and empowerment of migrant communities regardless of nationalities and to promote cultural diversity in Hong Kong based on mutual respect, solidarity, and shared empowerment among peoples.

ESF Lions Football U11s Win

The Citibank Soccer Sevens took place 20-22 May 2016 at the Hong Kong Football Club. We are thrilled to announce that the Tanner De Witt sponsored ESF Lions won some silverware; the U11s won the Plate and were lucky to meet legendary football star David Johnson (a three times European Cup winner!). Read more about our support for the ESF Lions here.

The ESF Lions U14 HKFA were also Division 3 Winners at the same event and we wish them all the best for the next season.

Tanner De Witt is proud to be active in the local community in sponsorship and support for charities, sports teams and local individuals and organisations.

For more information about our work with the local Hong Kong community and charities in Asia along with our sponsorship and events, please contact our Marketing and Business Development Manager Lizzie Fraser (lizziefraser@tannerdewitt.com).

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Tanner De Witt Partner, fraud expert and sole Hong Kong representative of the International Chamber of Commerce’s Fraudnet, Jeff Lane will co-chair this year’s C5 2nd Annual Fraud, Asset Tracing and Recovery Asia Conference to be held at the Mandarin Oriental in Hong Kong on Monday 6 and Tuesday 7 June 2016.

Jeff will co-host with Robert Hunter (Edmonds Marshall McMahon) on day one, with Keith Oliver (Peters and Peters) and Disa Sim (Rajah and Tann) co hosting day two.  The event is C5’s second venture in Hong Kong, following the successful inaugural conference in 2015.

About Jeff Lane

Jeff Lane conducts a strong commercial litigation practice with a focus on domestic and complex multi-jurisdictional financial fraud disputes and asset tracing and is Hong Kong’s go-to specialist in the growing area of cyber fraud. He has practiced in Hong Kong for twenty seven years and is the sole Hong Kong representative of FraudNet, the international network of specialist fraud practitioners established by the International Chamber of Commerce. FraudNet is an international network of independent lawyers who are the leading civil asset recovery specialists in each country. Click here to see Jeff Lane’s profile.

About the conference

With major incidents of fraud on the rise in Asia, lawyers and forensic experts require the know-how and contacts on the ground in order to achieve the best results for their clients. As well as understanding the nuances of asset tracing and recovery in the Asia region, the global nature of fraud means that increasingly remedies need to be sought in jurisdictions beyond Asia where assets are hidden, including the Caribbean, US and Europe. In what is the leading event of its kind taking place in the region, C5’s 2nd Fraud, Asset Tracing and Recovery Asia conference will bring together an international array of experts involved in fraud litigation and asset recovery to share their unique experiences and insights in this growing area. In addition to extensive coverage of how the key legal challenges can be overcome in different jurisdictions, attendees will also receive practical examples of innovative tools and methods that will assist when planning strategy for fraud litigation.

This conference is part of C5’s unrivalled series of Civil Fraud events that also take place each year in London, Geneva and Miami. As well as the learning opportunities, the high level of attendees ensures unrivalled networking with decision makers in a practice area where referral work is common.

Please contact us for more information.

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Tanner De Witt is proud to support a worthy cause and provide pro bono legal services to the makers of A Plastic Ocean.

A Plastic Ocean is a new feature-length adventure documentary that brings to light the consequences of our global disposable lifestyle. We thought we could use plastic once and throw it away with negligible impact to humans and animals but that turns out to be untrue.

In A Plastic Ocean an international team of adventurers, researchers, and world-saving heroes embark on an expedition around the globe that delves into the unknown lurking beneath our seemingly pristine and remote waters. During its four-year production period, this adventure documentary was filmed in 20 locations around the world in beautiful and chilling detail to document the global effects of plastic pollution and introduce workable technology and policy solutions that can, if implemented in time, change things for the better.

For a full list of the documentary film’s supporters click here.

Plastic Oceans Ltd.

Plastic Oceans Ltd. is a Hong Kong-based not for profit organisation that is dedicated to protecting and preserving the environment, with a special focus on plastics and our oceans. The organisation works to educate the public about the need for change and persuade industry to take responsibility in the manufacturing/disposal processes.

For more information on our charity and pro bono services, see our Community page.

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The International Chamber of Commerce’s global network of fraud specialists FraudNet held its annual meeting this year in Hong Kong. Held at the Mandarin Oriental the conference took place Friday 3 to Sunday 5 June with social activities across both evenings organised by Hong Kong law firm Tanner De Witt. Here are some highlights from the event.

Thank you to John Oxenham and Jeff Lane for providing photos.

Click here to view FraudNet Hong Kong member Jeff Lane’s profile.

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The global interest in Asia and in particular inbound investment to China has led to a sustained increase in Hong Kong arbitration as a dispute resolution mechanism in commercial contract agreements.

The absence of robust legal systems in some parts of Asia has meant that contracts for projects in this region often stipulate that Hong Kong should be the main arbitration system used to resolve disputes due to its long and established reputation for offering a reliable, neutral, confidential and efficient solution. Further afield, many commercial parties from Europe and North America entering into business in Asia will select Hong Kong as the preferred jurisdiction for arbitration for the multilingual legal system and modern, progressive and reliable service mind set.

Tanner De Witt is engaged on domestic and international arbitrations in Hong Kong and works on arbitrations administered by: Hong Kong International Arbitration Centre (HKIAC), China International Economic and Trade Arbitration Commission (CIETAC), International Chamber of Commerce (ICC), London Maritime Arbitrators Association (LMAA), the core legal body of the UN system in the field of international trade law, United Nations Commission on International Trade Law (UNCITRAL), and others.

Why choose arbitration?

Parties choose to use arbitrators with relevant sector knowledge and experience for their disputes for a range of different reasons. Arbitration can lead to faster resolution with less conflict and stress than taking the dispute to the court system. Parties are free from the court timetable and the objective is to come to a solution with less conflict which can lead to faster results. Arbitrations also provide greater levels of confidentiality in proceedings.

Although arbitration is not always cheaper than traditional litigation, Tanner De Witt will help clients to resolve conflicts in a cost-effective manner with minimum disruption to commercial relationships.

Contact us to learn more:

Pamela Mak
Partner | Email

Mark Side
Partner | Email

Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.

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Tanner De Witt congratulates solicitor Rowan Varty who has been selected to play in the Hong Kong Men’s Seven for Olympic Repechage Tournament in Monaco.

The selected team consists of: Max Woodward (captain), Rowan Varty, Yiu Kam Shing, Jamie Hood, Alex McQueen, Tom McQueen, Lee Ka To, Calvin Hunter, Kwok Pak Nga, Jack Capon, Michael Coverdale, Chris Maize and Mark Wright.

See the full story on the HKRU website here.

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Individuals can make arrangements to appoint other persons responsible in the event that a loss of mental capacity causes an inability to manage his or her own financial affairs such as in the case of dementia.  A document known as Enduring Power of Attorney (“EPOA”) serves this purpose.

An EPOA is not to be confused with the document known as a power of attorney which confers general or specific powers to carry out arrangements on behalf of individuals who have mental capacity in circumstances where such individuals are unavailable or unable to attend to certain matters.  A typical example is a power of attorney authorising a person to execute documents in a corporate transaction where he is overseas.  Such power of attorney automatically becomes ineffective when the person conferring the power loses mental capacity.

An EPOA is made at a time when the donor of powers has mental capacity to manage his own financial affairs and this document would remain effective in the event that the donor subsequently loses mental capacity.  To be able to use the EPOA, for example, after the donor loses mental capacity, the attorney is required to register the document with the High Court.  The donor could require that the attorney gives notice to named persons before he registers the EPOA.

In the EPOA, the donor typically arranges as follows:

• appoint more than one attorney so that the attorneys may assist or monitor each other;
• place restrictions on the authority of the attorney(s);
• specify a date for an EPOA’s commencement or an event to trigger its commencement;
• nominate person(s) to be notified by the attorney before applying to the High Court for the registration of the EPOA.

The EPOA must be made in such form as prescribed by the Enduring Powers of Attorney (Prescribed Form) Regulation (Cap. 501A of the Laws of Hong Kong).  It is mandatory that the donor makes the EPOA before a registered medical practitioner and a solicitor.  The attorneys must be at least 18 years old, mentally capable and not a bankrupt.  A trust corporation can also be an attorney.

A donor can revoke the EPOA whilst he is mentally capable or after recovery from mental incapacity.  If the EPOA has been registered with the High Court, a court application to revoke the EPOA would be required.  An EPOA would be revoked automatically when the attorney passes away or becomes bankrupt.

A simple example is this:  Peter makes an EPOA appointing his son to deal with his financial affairs if ever he loses mental capacity.  Whilst Peter is mentally able, he knows where and how he could draw funds from his bank accounts.  He is able to invest his money, pay his own bills and live normally.  One day, Peter loses mental capacity and can no longer recognise himself, his family or understand any meaning or values.  He has special medical needs and needs to be hospitalised.  To settle the medical bills, Peter’s son needs to convert some of Peter’s stock portfolio into cash.  In order for Peter’s son’s instructions to be authorised by the bank, the son is required to produce a registered EPOA.

In light of the ageing population and an increasing number of dementia cases in Hong Kong, the EPOA is of particular importance. To further understand this process, please contact:

Eddie Look

Partner | Email

Natalie Chok

Solicitor | Email

Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.

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Jeff Lane, fraud specialist at Tanner De Witt today gave a talk held at the Canadian Chamber of Commerce to in-house counsel members of HKCCA, Hong Kong’s only non-profit association of in-house counsel run for in-house counsel by in-house counsel (Hong Kong Corporate Counsel Association).

Jeff’s talks covered important aspects of fast growing internet fraud including the three R’s: Recognition/Reaction/Resolution.

Topic Overview

In the last 10 years internet fraud has become a feature of everyday business practice.  The bare faced cheek of the confidential trickster of yesteryear has now been replaced with the insidious skills of the boiler house fraud, internet identify theft and CEO fraud.  The purpose of this discussion will be to help you to identify circumstances in which such fraud may arise, the appropriate way in which to respond and should it be necessary, how, as a victim, to initiate to effect a meaningful recovery strategy.

About Jeff Lane

Jeff conducts a strong commercial litigation practice with a focus on domestic and complex multi-jurisdictional financial fraud disputes and asset tracing and is Hong Kong’s go-to specialist in the growing area of cyber fraud.

Jeff has practiced in Hong Kong for twenty seven years and is the sole Hong Kong representative of FraudNet, the international network of specialist fraud practitioners established by the International Chamber of Commerce. FraudNet is an international network of independent lawyers who are the leading civil asset recovery specialists in each country.

Jeff has significant experience of inquiries by  Hong Kong’s Securities and Future Commission (SFC), Independent Commission Against Corruption (ICAC) and Commercial Crime Bureau (CCB). Jeff regularly deals with Insider Dealing Tribunal matters. Jeff also conducts arbitrations and mediation.

For enquiries regarding speaking opportunities to our lawyers or speaking opportunities for our lawyers to external organisations, please contact us.

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Tanner De Witt’s insolvency and restructuring team attended the Annual IWIRC Ball on Thursday 16 June. Through the tremendous support of the vendors who donated prizes and attendees who bought raffle tickets, HKD35,000 was raised on the night for the local charity ‘HER Fund’ which promotes and protects the rights of marginalised and grassroots women and girls through grant-making, capacity building and resource development.

Anthony Hill, Sunny Hathiramani, Tim Au, Veronica Chan, Rachel Hui and Troy Greig plus guests enjoyed an evening of fun and networking.

IWIRC (International Women’s Insolvency & Restructuring Confederation) is committed to the connection, promotion and success of women in the insolvency and restructuring professions worldwide.

For event and sponsorship enquiries, please contact us.

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As part of a region wide initiative, JLT Asia implemented a learning week requesting Hong Kong law firms to take part in a one hour seminar.   Tanner De Witt was pleased to participate in such a worthwhile initiative and Edmond Leung, Partner of our Corporate and Commercial department and Derek Cheuk, Solicitor in our Litigation and Dispute Resolution department attended the Hong Kong office of JLT to present a seminar on Basic Contract Law.  The seminar covered the basic requirements of making a valid contract, breach of contract, contract disputes and other matters to consider when making a contract.

Jardine Lloyd Thompson (JLT) Asia, a subsidiary of JLT Group, is a market leader in insurance and reinsurance broking, risk consultancy and employee benefits services with over 1,700 staff in 14 major territories across Asia.

About Tanner De Witt

Tanner De Witt Solicitors is an established and recommended independent law firm in Hong Kong.  Our firm and lawyers, many of whom have international law firm backgrounds, receive top ratings from industry publications such as Chambers and Partners and Legal 500.

Our primary focus is business law in Asia.  We provide legal advice and representation in the following areas:  Corporate and Commercial; Litigation and Dispute Resolution; Insolvency and Restructuring; Employment; Immigration; Family and Private Client; Wills and Trusts; Financial Services Regulatory; Hospitality including Liquor Licensing; White Collar Crime and Criminal.

For further information, contact Lizzie Fraser, Marketing and Business Development Manager of Tanner De Witt Solicitors, at lizziefraser@tannerdewitt.com or +852 2573 5000.

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Joining one of the largest independent law firms in Hong Kong and operating under the overall guidance of a Marketing and Business Development Manager, the Marketing Executive will provide marketing support to the Marketing Department and fee earners across all practice areas. This role is suitable for a junior marketing professional who wishes to develop their career within professional services in a fast-growing law firm.

Responsibilities include supporting:

• Internal and external marketing events
• Foreign travel for fee earners
• PR and communications
• Digital marketing (website and intranet)

The role will also include administrative tasks to support the Marketing Department and the firm including processing invoices and payments, supervising internal marketing resources and data input (prior knowledge of Affinity or similar client management platforms is a bonus).

Requirements:

• Excellent spoken and written English (spoken and written Cantonese is an advantage)
• 2+ years’ experience in marketing / administrative role
• Self-starter with excellent organisation skills
• Able to manage wide range of tasks
• Exemplary communication skills
• Excellent computer skills (Microsoft, web, digital)
• Design skills are preferred (Photoshop, Adobe)

Applicants should email their CV and covering letter including salary expectations to Lizzie Fraser – lizziefraser@tannerdewitt.com.

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